Lawsuits over Obama rule pit state AGs against governors

Source: Robin Bravender, E&E reporter • Posted: Monday, November 9, 2015

Governors and their states’ top attorneys don’t always agree on legal strategies.

Case in point: the Obama administration’s Clean Power Plan.

The legal battle now includes 45 states: 27 states suing over the rule against 18 states backing U.S. EPA’s plans to cut power plants’ greenhouse gas emissions. In at least three of those states — Colorado, Maryland and Iowa — the governors are at odds with the attorneys general.

It’s not uncommon for state attorneys general and governors to spar over contentious legal issues. Both positions are elected separately in most states, and in some the offices are occupied by officials from opposing parties. But the high stakes and high visibility of the Clean Power Plan have brought more scrutiny to the lawsuits — and more attention to in-state fighting — than usual.

“I think it has more to do with the issue itself, the fact that this is such a high-profile political issue,” said Christine Todd Whitman, a former EPA administrator and Republican governor of New Jersey.

“You can demonize it pretty quickly,” she said of the EPA rule. She credited the agency with making the rule flexible but said that given its broad impacts, “it just makes it a whole lot easier to score the political points.”

In Colorado, Democratic Gov. John Hickenlooper opposes efforts by the state’s Republican attorney general to upend the EPA rule in court. Hickenlooper has asked the Colorado Supreme Court to affirm that his office has the final say on the state’s involvement in federal lawsuits (EnergyWire, Nov. 5).

In Maryland, Democratic Attorney General Brian Frosh opposed Republican Gov. Larry Hogan this week by joining a coalition of states supporting EPA in court (Greenwire, Nov. 5).

Iowa Democratic Attorney General Tom Miller also joined that coalition of EPA backers, despite Republican Gov. Terry Branstad’s opposition to the rule.

“That’s happened on occasion in the last few years, which is not surprising,” Miller told reporters earlier this week. “We’re in different parties and have different views on issues, particularly on relationships with the federal government.”

Such public rifts on high-profile political issues aren’t unusual, said Mark Pryor, a Democrat who served as both a U.S. senator and attorney general in Arkansas.

When Pryor was the state’s top attorney, Republican Mike Huckabee was in the governor’s office.

“The bottom line is that these state attorney generals are elected by the people to be the chief legal officer of the state,” Pryor said. “The governor is elected by the people to be the governor of the state.”

The attorney general’s authority rests on a particular state’s constitution, “and they’re all going to be a little different,” Pryor said. “I’ve always taken the view that on these type of matters, it’s the attorney general’s prerogative to take the legal positions for the state.”

In 43 states, attorneys general are popularly elected, according to the National Association of Attorneys General. In five states — Alaska, Hawaii, New Hampshire, New Jersey and Wyoming — attorneys general are appointed by the governor. Maine’s Legislature elects the state’s attorney general by secret ballot, and in Tennessee, the attorney general is picked by the state’s Supreme Court.

Former governors and attorneys general said differences in opinion about how to represent the state in lawsuits can happen on a broad range of issues, from environmental rules to health care. Similar divisions played out during the legal battle over the Obama administration’s Affordable Care Act.

Haley Barbour, former Republican governor of Mississippi, said there were instances during his tenure when he was at odds with the state’s Democratic attorney general on lawsuits about the environment and other topics.

“There were several occasions when he and I disagreed,” Barbour said. “And if he chose not to represent the state on an issue in which I thought the state should be involved in the litigation, I would give him the opportunity, and if he chose not to, then I had the right to hire outside counsel and the state would enter into the litigation.”

Miss. joins the fight

Mississippi yesterday became the 27th state to oppose the Clean Power Plan in the pending lawsuit before the U.S. Court of Appeals for the District of Columbia Circuit.

The lawsuit was filed by the Mississippi Department of Environmental Quality, part of the executive branch controlled by the Republican governor, Phil Bryant. Mississippi Attorney General Jim Hood is a Democrat.

“It would not be unprecedented if the executive branch gave the attorney general some time to decide whether he wanted to file, and if he decided he was not going to, that then the executive branch — whether it’s the governor or in this case the Department of Environmental Quality — would file separately,” Barbour said.

These types of intrastate fights are happening more often than they used to, said Doug Gansler, former Democratic attorney general of Maryland, who served as president of the National Association of Attorneys General.

“It’s become a more political office, so what happens is, people with political agendas often run for attorney general now,” said Gansler, who lost a bid to become Maryland’s governor last year.

“In the olden days, it would be sort of the revered, seasoned lawyer that would run or a prosecutor would run,” he added. “Today, you’ll get more political-type people that will run for attorney general and use some of these lawsuits, for example, the EPA-type suits, will look at them more along political lines than on their merits.”